O v The Governing Body of Park View Academy & Anor

This is a troubling case, as any school exclusion case is likely to be. There are particular factors here which give rise to concern. The applicant, who I will call O, is a pupil at the respondent, Parkview Academy. He was born in 1991 and is of Kurdish origin. He has been brought up by his mother alone and she speaks little English. He has clearly had a number of hurdles to overcome. He is now in Year 11, leading to GCSE exams this summer. He is currently in the course of taking, as I understand it, 9 GCSE subjects. He has had generally a good record. On any view, it is tragic that his education has been disrupted at this critical period as a result of what everyone agrees was a one-off and uncharacteristic incident.

However, the function of this court is very limited and is concerned simply with any legal defects in the school’s response to the problem. The initiating event was a serious incident in the school canteen on 14 June 2006, when a lady manager was assaulted by him. I do not need to go into the circumstances of that event, except to say, as I have already commented, that it was a one-off event. However, the staff-member was injured, and it was understandably taken seriously by the school authorities. The headmaster decided to exclude him permanently and that decision was upheld by the Governing Body. The relevant guidance, quoted by the judge at paragraph 3, makes clear that it may be appropriate to proceed by way of permanent exclusion for a one-off offence, where there is serious actual or threatened violence against another pupil or a member of staff.

There was a right to appeal to the Independent Appeal Panel. After a hearing on 28 September 2006, they decided to direct reinstatement. Their decision, recorded by the judge on paragraph 7 was set out in a letter dated 3 October 2006. Their decision was made -

“…with a view to a staggered re-instatement, with O back into full-time education by half term”.

They indicated in their reasons that they had taken the Secretary of State’s guidance into account and felt that there were exceptional circumstances, which made permanent exclusion not the appropriate sanction. They noted that he had had a “relatively unblemished record” and that this incident was “‘out of character’, and possible medical factors could have contributed to his behaviour.” They took into consideration the state of his education. They also considered the broader interests of other pupils and staff in the school as well as those of O and they said:

“… though it was reasonable for the school to consider permanent exclusion, it was felt that a long fixed term exclusion would have been the most appropriate sanction in this instance.”

What followed that decision appears from a statement form the head teacher, which again is set out fully by Burton J. He makes clear that he was unhappy with the panel’s decision, but nevertheless properly informed members of the school staff of it and made clear that he had a legal obligation to comply with it. He continued:

“I would have ignored my concerns described above and organised the Claimant’s reintegration of the pupil into School, if there had been no threat in industrial action by at least the teaching staff of the School. However, on 16 October 2006, the representative of the School of the NUT sent the following message by e-mail to all of the staff at the School, not just members of the NUT:

“‘Dear all,

“The meeting last week voted unanimously to call for a ballot not to teach or supervise the student who was reinstated on appeal after assaulting a member of the staff…’”

The letter from the NUT, which came very shortly indeed after notification of the panel’s decision, explained the mechanism for giving effect to that statement of organising a ballot. The head teacher continues in the statement:

“Shortly after the NUT’s meeting, where a unanimous vote was taken, I discussed the situation with the NUT representative at the School. He said that the Union’s members felt very strongly about the matter. The vast majority of the teaching staff at the School are members of the NUT.”

(I understand that 55 per cent of the teaching staff of 82 are members of the NUT.)

That was the view taken by the teacher at the time. It is convenient at this stage to refer to the actions of the NUT thereafter. After proceedings in this case had been issued in January 2007, the head teacher was told that the NUT members had met and discussed the matter again and there was higher attendance and the feeling was even stronger. A letter dated 12 February was sent to the director of children’s services at Haringey indicating that it was intended to commence a ballot of the 60 NUT members who were teachers at the school on 23 February 2007. On Friday, 9 March, the head teacher and chairman of the school of governors received copies of a further letter from the NUT Assistant Secretary, dated 9 March, giving notice that the NUT would commence industrial action on Friday, 16 March. That followed a ballot in which 26 of the members voted in favour of industrial action short of strike action in the form of a refusal to teach, supervise or otherwise work with the student involved. There were no votes against.

I note in passing that the hearing of the present application for review was fixed for 14 March. Mr Squires for the claimant suggests that the timing of the NUT meetings may have been linked to that.

I return to the head teacher’s statement. He says this:

“Given the situation, in October 2006, I formed a clear view that if I directed the teaching staff of the School to teach the Claimant as if he had not been excluded, then their associations would hold one or more ballots and they, or at least most of them would vote in favour of industrial action. They would then refuse to teach him. I therefore concluded that the only way in which I could ensure that he received any education at the School would be to have him educated in a room on his own.”

Having taken that view, the head teacher put together an educational package for the claimant. I need not go through the details of that. It is set out in judgment below at paragraph 9. It involved him going to Waltham Forest College, where he was hoping to go in any event in September, and receiving personal tuition there. The head teacher says that the package cost -

“…more than twice as much the money than the School received for the Claimant’s education and is the most expensive provision offered to any student at the School who does not have a statement of special educational needs.”

He recognised that there was a gap in the education in the meantime and authorised funding of personal tuition. He continues in the statement:

“…I should say that a ballot concerning the possibility of industrial action was in fact not held because O and his family were prepared to go down the route of him getting him educated primarily at the College, with individual tuition to supplement it. Initially, they were not prepared to do so. I therefore wrote to them on 19 October 2006. I also made it clear to them that if the Claimant were educated at the School, then he would be educated in a room on his own. They then opted for the provision at the college.”

As I have said, the judicial review proceedings were begun in January 2007. They were unsuccessful before Burton J on 15 March 2007. On 20 April 2007 Scott Baker LJ adjourned the permission to appeal application to hearing on notice, with the appeal to follow if permission were granted. So it comes before us today. We have heard Mr Squires for the claimant open his appeal as though it had permission. I will indicate at the end of this judgment my view on whether permission should be granted and if so what consequences.

There are, in summary, four grounds on which Mr Squires challenges the school’s approach. First, they did not amount to “a reinstatement” within the meaning of the 2002 regulations. Secondly, and in any event, the judge misread the guidance of the House of Lords in the leading case of Ex parte L [2003] 2 AC 633. In particular, Mr Squires says that the majority in that case required whatever regime was put in place to be “consistent in his status as a pupil” and that is not fulfilled by proposals which involve effective isolation from the rest of the school for a large part of the school year. Thirdly, too much weight was put by the teacher on the alleged threat of disruption by the NUT, which Mr Squires says was not in pursuant to the law of trade disputes. Fourthly, there was a failure to provide tuition in accordance with the national curriculum, as required by the relevant Act.

On the first two points, which concern the meaning of the word “reinstatement”, the judge took the view that the law in this area was effectively settled by the House of Lords in the case of L. In my view, he was right so to do. That was a case which had many similarities with this, in the sense that there was an exclusion following a violent incident and the school was then faced with difficulties in the face of threatened industrial action by the union. The head-note in the law reports reads as follows:

“Held, dismissing the appeal, that ‘reinstate’ within Section 67 of the 1988 Act connoted restoration of the legal relationship between of the school community, not as a mere formality but as the resumption of a status which carried with it statutory and common law obligations owed by the school to all its pupils; that, since the panel’s jurisdiction under Section 67 was confined solely to the question of whether permanently excluded pupil should be reinstated, any direction it made was expressed in neutral terms, irrespective of the base on which the decision had been reached, and without conditions to the manner in which reinstatement might be managed; that it was for the head teacher and the governors, having performed their duties and complied with the direction, and taking account of their countervailing obligations, in particular to other pupils and staff, to make appropriate arrangements thereafter for the pupils’ management within the school community; that, having regard to the Divisional Court’s finding of good faith in the circumstances, including the teachers’ threat of action, L had been reinstated within the statutory meaning. the regime thereafter imposed on him was a permissible response consistent with treating him as a pupil at the school, and that, accordingly the headteacher’s and governors’ action had not been unlawful.”

It is to be noted on the facts of that case that the regime involved L on his return to school until some 30 school days later, being barred from all contact with other members of the school community.

The judge in this case set out the central passage from the speech of Lord Hobhouse. I do not need to read that in full. It seems to me that it supports the way the matter is put in the head note. He said in particular at paragraph 36:

“The school pupil relationship has to be reinstated and the responsibility and obligation of the school towards the pupil resumed. How well those responsibilities and duties are thereafter performed by the school is a separate question unless the resumption can be shown to be a sham or to be so nugatory as to evince an intention not in truth to resume at all. The test is stringent and is directed to realities not mere formalities. But anything less than this is a failure of the performance of those duties, not a failure to reinstate.”

He thought that the real complaint was not about reinstatement, but about the failure thereafter to reintegrate him fully into the social life of the school, which in Lord Hobhouse’s view was not relevant to the question of reinstatement. At paragraph 48 he made clear that the question of the regime thereafter was:

“…A matter of making educational and managerial choices which is a matter for the school and lies wholly outside the jurisdiction of the independent panel and the scope of its decision.”

Mr Squires suggests that Lord Hobhouse was perhaps out of line with the other members of the majority; that is, Lord Scott and Lord Walker. That is a difficult proposition, not least because at the end of this speech Lord Scott said in terms that he adopted the reasoning of both Lord Hobhouse and Lord Walker, with whom he clearly did not think he was differing significantly in any way.

Lord Scott did however expand on some of the issues further than Lord Hobhouse. As to the word “reinstated”, at paragraph 56, he said::

“There are two sides to the spectrum. One was that the school must be restored to the status quo ante in all respects. The other, on the opposite side of the spectrum, was that all that would be needed would be a formal re-acceptance by the school in responsibility for the pupil, by, for example, replacing his name on the school role. My Lords, I would reject both of those extremes. As to the formal reacceptance by the school of responsibility, that acceptance would certainly be necessary but not sufficient. The formal reacceptance would have to be accompanied by treatment of the pupil that was consistent with his or her status as a pupil of the school. Otherwise the reacceptance would be meaningless.”

Later on in his judgment he considered in rather more detail the effects of the regime and the criticisms of it:

“On this view of the case the real issue is not a precise meaning to be attributed to the word “reinstate” in section 66 and 67 but as to the lawfulness of the head teacher’s response and the difficulties confronting him. In my opinion, his response cannot be characterised as unreasonable and disproportionate and accordingly, was lawful.”

So, one sees there a clear distinction between the question of reinstatement, on which as I read him he was entirely at one with Lord Hobhouse, and the question of the management of the regime thereafter, which was a question of reasonableness and proportionality.

Lord Walker, in my view, was to similar effect. At paragraph 67, he said that the issue of construction was a short one as to the meaning of “reinstate”:

“Despite the fairly extensive argument developed by Miss Booth I consider that it is indeed a fairly short point, and that Henriques J and the Court of Appeal (following Richards J in R(C) v Governors of B School [2001] ELR 285) were right in their conclusion that it means simply that a pupil ceases to excluded from the school in question….

But it is not a mere formality. It is in this context a symbolic act with very important legal consequences. It restores the legal relationship (discontinued by permanent exclusion) between the school community and the individual pupil and it brings back into force the web of statutory and common law obligations which the school owes to all its pupils, including the reinstated pupil.”

Again, I see no difference between that and the approach of Lord Hobhouse. Lord Walker came back to the point, at paragraph 79, having considered the facts:

“No attack has been made on the good faith of either the head teacher or the governors. They had the responsibility, on the appellant’s reinstatement, of managing his return to the school in the interests of the appellant, the other pupils, and the whole school community. Having regard to all the factors which I have mentioned, I consider that their decision, although ill-advised in depriving the appellant of any normal contact with his fellow-pupils, was not so disproportionate as to go beyond the limits of their managerial and pastoral discretion.”

He made some other comments about the effect of the threatened industrial action, which I shall need to come back to in the context of the third ground of appeal.

Mr Squires has two responses: first, that the statutory regime has changed; second, the facts of this case are different. As to the first, it is indeed right that the L case was considered under the School Standards and Framework at 1998, section 67, whereas the present case falls under the Regulations made in 2002 under the Education Act 2002. The regulations (the Education Pupil Exclusions and Appeals Maintained Schools (England) Regulations 2002) deal with the powers to exclude pupils under section 52 of the 2002 Act. Regulation 6 provides for power of appeal and 6(3) says that in making a decision on appeal, the panel should have regard to the interest of the excluded pupil and the interests of other pupils and persons working for the school. Regulation 6(6) provides:

“(6)

On such an appeal the appeal panel may - 

(a)

uphold the exclusion;

(b) direct that the pupil is to be reinstated (either immediately or by a date specified in the direction), or

(c) decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction.”

Regulation 7 says that “[the] body shall have regard to any guidance given from time to time by the Secretary of State”.

It is true that paragraph 3 and 6(c) are new, in the sense that there is no counterpart in the Act that was considered by their Lordships. I see nothing in paragraph 3 which assists Mr Squires. The statement that account must be taken of the interests of pupils and other people working at the school might be said to be a statement of the obvious. It does not, in my view, carry any implication that there are going to be any particular relations with other pupils or teachers following reinstatement.

There is more perhaps to be made of paragraph 6(c). This does give the panel another string to its bow other than simple reinstatement. Mr Squires draws attention to paragraph 69 of Lord Walker’s speech, where he attached weight to the lack of any ability on the panel to attach conditions or to make ancillary directions. This provision does not do that, but it does at least give the option of not ordering reinstatement in exceptional circumstances. The guidance issued by the Secretary of State, paragraph 142, gives as an example of the cases where that might apply as being where the panel consider that permanent exclusion should not have taken place, but that reinstatement in the excluding school is not a practical way forward in the best interests of all concerned, possibly because of irretrievable breakdown in relations between pupil and teachers.

In my view those changes do not provide any basis for saying that the meaning of reinstatement changed. In the first place, it would have been a remarkable piece of draftsmanship to have adopted precisely the same word in regulations promulgated shortly after the L case had been in the Court of Appeal, if what had been intended was to signal a new approach. The Court of Appeal’s judgment is in fact very much in line with the majority view of the House of Lords. Secondly, I do not see how adding a specific judicial power for dealing with cases of exceptional circumstances in any way affects or detracts from the powers that were already available.

Mr Squires’ other point is that the regime imposed by the head teacher in this case was significantly more severe than that imposed in the L case. I accept that it was a very severe regime, in that it had the effect that the claimant was effectively deprived of the ordinary school life for a large part of the school year. However, I do not see that as a difference in principle. The judge dealt with this at paragraph 29 of his judgment. As he said, the fundamental question in the end was whether Re L could be distinguished by virtue of the different periods of time involved. He concluded:

“30.

In my judgment the maintenance of the regime must be regularly tested, and it reasonableness and the reasonableness of its continuation depend upon the facts. On the evidence before me the imposition of the regime was reasonable in all the circumstances. It might well have been that there would have come a time when it became unreasonable to continue that regime. However, it is quite plain that the industrial difficulties which the school faces preventing complete reinstatement continue as of now. I conclude that the imposition of the regime was not unlawful, and that, accompanied by the without prejudice undertaking, the continuation remains lawful.”

There are two points there which I will need to discuss further: the relevance of the industrial action, and the force of the undertaking,. Subject to those, I see no reason to question the judge’s view. It seems to me that this was a matter for the head teacher. It is also a matter in which I think this court would be very reluctant to second-guess the assessment of an experienced Administrative Court judge.

I come to the other two points. The first is the question of the industrial action. Lord Walker dealt with this at some length in the Re L case. He was very concerned that the threat of industrial action by the Union had the effect of, to some extent, dictating the course which the school was able to take. At paragraph 80 he said:

“It is accepted on behalf of the appellant that the threat of industrial action was not an irrelevant consideration. I think that it was a most regrettable event, especially when coupled with the teachers’ refusal even to consider the contents of the independent appeal panel’s decision. The teachers’ reaction was irresponsible and unprofessional, however exasperated they were at the turn of events. Nevertheless it is common ground that there was trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 and a regular ballot on industrial action was held. The teachers’ action was deplorable but it cannot to my mind detract from the lawfulness of the governors’ decision.”

In this case Burton J disagreed respectfully with Lord Walker’s comments:

“If such a substantial majority on the NUT has indeed unanimously so voted so as to bind their colleagues, then that position must, in my judgment, be respected, unless it can be shown to be a sham. Mr Squires has suggested that the Headteacher ought to have made more enquiries of the NUT. There was no evidence direct from the NUT before me … However, I see no reason to doubt the strength of feeling which has obviously arisen.”

I am not concerned, I think, to arbitrate between the views of Lord Walker and Burton J about the merits of the stance taken by the NUT in cases such as this. Certainly Lord Walker’s points were not part of the ratio of the majority. What matters in my view is that Lord Walker made clear, as did the others, that the actions of the Union and the threat of industrial action were clearly a relevant matter which the head teacher was entitled to take into account. Short of perversity in response to that threat, I see no basis on which it can be said to give rise to an error of law.

Mr Squires suggested that in the present case, by contrast with that, there was never a trade dispute, because in fact, by February and March 2007, when the ballot was put in place, the teacher had agreed not to direct the teachers to do something that they were unwilling to do. It seems to me that, if an actual trade dispute is something to be taken into account, then bona fide anticipation of an industrial dispute is equally relevant. I do not think that there is anything which requires a head teacher to wait until their relations to the staff have completely broken down before making what he thinks is an appropriate response.

Perhaps the strongest point which Mr Squires is able to make is that there is no indication of any serious attempt by the head teacher to negotiate with the union or the teachers who were leading the protest. We have been shown the correspondence in which the question was put specifically to the head teacher as to whether they had taken any steps to negotiate; to which the answer was, no. We were also shown the letter from the union, dated 12 February 2007, in which there was the notice of intended ballot, which ended:

“The union remains willing to reach a negotiated settlement from the current dispute.”

Sitting in this court and not having the direct responsibility for responding to these events, it seems to me unfortunate more was not done to seek some compromise with the union. It may be that the solicitors for O could have done more to bring about a compromise. However, what happened was that in January, judicial review proceedings were begun and thereafter the battle lines were drawn. This would only be a point which would be relevant in these proceedings if it could be shown that the head teacher’s failure to do more was irrational or perverse. In the face of the head teacher’s statement as to the reasons why he took the course he did and his clear understanding, having met the teachers of the strength of views, it would be impossible to reach such a conclusion.

The last point relates to the national curriculum. Mr Squires says that the school was under a statutory duty to provide tuition as required by the national curriculum and that has not, in the event, been done. The statutory background is in the Education Act, section 88. Section 85 sets out the contents of the curriculum. Section 88, headed “Implementation for the National Curriculum in Schools”, provides:

“In relation to any maintained school and any school year-

the local education authority and the governing body shall exercise their functions with a view to securing, and

(b)

the head teacher shall secure,

that the National Curriculum for England as subsisting at the beginning of that year is implemented.”

Section 93, headed “Temporary exceptions for individual pupils”, provides that the regulations may enable the head teacher to direct:

“In respect of a registered pupil at the school that, for such period as may be specified in the direction (the "operative period" of the direction), the National Curriculum for England-

(a)

shall not apply, or

(b)

shall apply with such modifications as may be specified in the direction.”

There is no question of any such temporary exception having been put in place in this case. Mr Squires says that that provision shows that this is not only a very important piece of the statutory framework for education, but also something which is specific in respect of particular pupils. He gives details in his skeleton argument of the extent to which the curriculum subjects had been provided for the applicant. He says that as of the date of the hearing (this was the hearing before Burton J) the claimant had for the whole of the 2006/2007 academic year received no tuition or other provision in the national curriculum subjects of English Literature, Turkish, Statistics, Media Studies and almost no tuition in science. He had also received no tuition in the national curriculum non-GCSE subjects of Information Communication Technology, Physical Education and Citizenship.

The judge did not in terms deal with this complaint. As he explained at paragraph 18 of his judgment, the school offered an undertaking in the course of the hearing to use its best endeavours to supply tuition in all of the subjects or topics referred to, subject however to the following qualifications: first that this was not to impose “an absolute duty” of the school; secondly, it did impose an obligation to supply tuition in any particular form, and thirdly -

“The best endeavours would include such endeavours to find a teacher within the school … but inevitably subject to the fact that such would not include NUT members … or, possibly, ATL members.”

The applicant did not accept that the undertaking was an appropriate response to the duty, not least because, as I have already said, 55 out of the 82 staff at the school were NUT members. They pressed the judge to determine the point. However, he decided that that undertaking should be treated as part of the ongoing regime. He concluded, in the passage that I have already read, that the imposition of the regime was not unlawful while it was accompanied by performance of the undertaking.

Before us, Mr Squires renews his complaint that there was a failure to comply with the statutory duty. We have before us evidence in the form of a statement by the applicant’s solicitors of 16 May and a response from the assistant head teacher on 21 May. It is clear from those that there have been difficulties in providing the education required by the curriculum, although there is some dispute as to the precise extent of the failure. The school say that they have used their best endeavours.

This ground does raise a potentially important and a far from straightforward issue. Mr Hyams, for the school, who we did not in the event need to call upon, deals with the point in his skeleton. Having referred to the wording of the Education Act, he says:

“… it is submitted that an individual pupil should not be able to enforce such duty as may be owed to an individual pupil in relation to the National Curriculum by means of a mandatory order, unless the head teacher is not doing all that he or she reasonably could do to comply with that duty: cf R v Inner London Education Authority ex parte Ali [1990] 2 Admin LR 882, 828B, where Woolf LJ held that the statutory duty which is now imposed by section 14 of the Education Act 1996 on a local education authority to ‘secure that sufficient schools for providing – (a) primary education, and b) education that is secondary education by virtue of section 2(2)2(a), are available for that area’ is a ‘target’ and not an ‘absolute duty’.”

For my part I would not be happy to adopt that expression of position, at least without further argument. I see considerable force in Mr Squires’ contention, based on the provisions relating to the national curriculum, that some duty to individual pupils is intended. On the other hand, the reference to the Ali case does seem to me to be particularly pertinent in the present case. At page 829, Woolf LJ, having expressed his views on the nature of the duty there in question, said this:

“Furthermore, even where there is a breach of s.8 the court in their discretion may not intervene if by the time the matter comes before the court the local education authority is doing all it that it reasonably can to remedy the situation. The situation is best left in the hands of the bodies to whom Parliament has entrusted performance of the statutory duty, if they are seeking to fulfil that duty.”

It seems to me that Burton J, in the exercise of the discretion which is available in proceedings of this kind, was fully entitled to take the view that it was better to accept the undertaking offered by the local authority as being the most practical way forward. I read him as taking that view, whether or not there was a breach of the statutory duty, and as an exercise of the discretion to which Woolf LJ referred. Mr Squires accepts that it is a discretionary matter. That being the case, it would be wrong for this court to interfere unless the judge’s approach was outside the bounds of his discretion. Although other judges might have taken a different view, I can see not error of principle in his approach.

Furthermore, I do not think it is a matter for this court to seek to police the undertaking or to rule on the factual differences between the two witnesses and what has now happened. There is a further factor that the issue has now become largely academic as far as this particular applicant is concerned, now the term has ended.

For all those reasons, I do not think the grounds of appeal are well-founded, and I would refuse permission to appeal.

I agree. I simply add a few words about the complaint that the judge failed to decide the part of the claim alleging a breach of the duty to provide the claimant with education in accordance with the national curriculum. In my judgment, Burton J was perfectly entitled to approach the issue in the way that he chose. He did not find that there had been or had not been a breach of duty. He simply took the view that whether or not there had been such a breach, the issue would best be resolved pragmatically and that the proper undertaking as to the future met the immediate needs of justice. In my view, that was well within his discretion.

Judges in the Administrative Court often have to resolve disputes between individuals and public authorities who remain in a continuing relationship, as was the case here. In such circumstances, if an issue can be resolved to the reasonable satisfaction of the judge, without the need for an adjudication on every point of dispute, that will often be to everybody’s advantage. In the present case the judge was entitled to take the view that the undertakings provided a better resolution of this aspect of the case then adjudication could have done. I find no basis upon which this court could interfere with that objectively sensible exercise of discretion.

I agree that this application should be dismissed for the reasons given by both my Lords, Lord Justice Carnwath and Lord Justice Maurice Kay. However, I would just like to add two points. The first point derives from the fact that O’s education has been considerably disrupted during this academic year, as explained both by Burton J and Carnworth LJ. I hope that that disruption will not affect his performance in the exams which he is taking at the moment. However, it is possible that it will. I hope that if O does perform less well than might have been expected, the disruption to his education will be taken into account by anyone considering his academic record in the future.

The second point is this: I very much hope that in the future a head teacher threatened with industrial action by a teachers’ union will do his or her utmost to identify the precise cause of the grievance and to try to negotiate a sensible settlement in order to minimise, so far as reasonably practical, disruption to the education of a pupil whose reinstatement has been ordered either by school governors or by the independent appeal panel.

However, all that said, I agree that the application cannot succeed.